Tribunal refusing to postpone

Hi, Im looking for some advice on possible tactics.

I’m assisting a client with a LTAHAW case re IS and there is an overpayment of £70000.00. The case has been going on for quite some time now, and was originally scheduled to be heard in January/February, but was postponed. The DWP have taken a long time to produce all of the information we need, including recordings of interviews under caution for the appellant and some other people who were interviewed.

The appeal has been listed for 02/08 but the appellant is on holiday from 01/08 - 05/08. At various points we have made the Tribunal aware of various dates that we cannot attend due to existing commitments, but this wasn’t one of the dates n question. Only when the date came through, did the client tell me that she was on holiday that week.

Ive written to the Tribunal and asked them to postpone due to her being on holiday but they have refused. I haven’t seen the reasons why yet but the client has called to say its been refused.

Any suggestions on ways round t? It would be an error of law if they proceeded, and we could get a decision set aside, but id rather try and avoid it getting to that stage.

you could try sending in hard copies of the client’s booking, which hopefully shows the date she booked as well.  and if they still won’t adjourn take said hard copies with you on the day; what the chair will do on the day might be totally different from what listing are doing now.

Thanks for that. In the refusal it does say that if any future requests are made, then evidence is needed as to when she made the booking and the location of the trip, so we should be able to get that evidence and submit a new request.

Is she also being prosecuted?  If so you may want to advise her to consider cancelling her holiday or losing one day of it to attend the hearing.  Otherwise the criminal proceedings may well overtake the Tribunal.

neilbateman - 27 June 2016 02:54 PM

Is she also being prosecuted?  If so you may want to advise her to consider cancelling her holiday or losing one day of it to attend the hearing.  Otherwise the criminal proceedings may well overtake the Tribunal.

this is true, of course.  the tribunal v mags thread is in point (it’s ancient)

There is an intention to prosecute yes. There was a magistrates hearing yesterday, which im assuming was the committal hearing to enter pleas et, and then the hearing will be arranged. There I a solicitor dealing with the criminal side through.

Advisor_1 - 28 June 2016 12:29 PM

There is an intention to prosecute yes. There was a magistrates hearing yesterday, which im assuming was the committal hearing to enter pleas et, and then the hearing will be arranged. There I a solicitor dealing with the criminal side through.

that doesn’t matter. the Tribunal should deal with this before the mags/crown court do.

that is because it is for the tribunal to decide on whether she was in fact living together, and everything else hinges on that.

and also because it is rare that a criminal solicitor/barrister actually understands benefits.

dig down to the tribunal or mags thread, it has links to all the relevant case law on the point

in the meantime, you client may well find it more financially advantageous to cancel her holiday and go to the tribunal - much cheaper and more beneficial to lose the cost of her holiday than lose her tribunal, have a massive overpayment, and then get convicted as well.

Is this the thread you’re referring to Claire?  http://www.rightsnet.org.uk/forums/viewthread/241

Daphne - 28 June 2016 02:40 PM

Is this the thread you’re referring to Claire?  http://www.rightsnet.org.uk/forums/viewthread/241

yup

thanks Daphne.  i was having massive problems with my browser today (solved by a reboot) so thanks for hunting it down..

It cannot be emphasised enough how sound the above advice is.

1. Whilst the client will always need to consult a criminal solicitor if prosecuted (or threatened with prosecution) for benefit fraud, it will be a rare solicitor who is fully up to speed with benefit law. And even if they are up to speed, magistrates and crown court are not.

2. It is a the tribunal that is the proper judicial body (and given that role by Parliament) with the appropriate expertese to decide issues of benefit entitlement - e.g. whether a claimant is actually the beneficial owner of capital, or is/was actually LTAHAW. And if a tribunal decides that the claimant was actually entitled to the same benefit that the CPS is alleging was obtained by fraud it is very difficult to imagine how any criminal prosecution can be sustained.

I’ve had a number of such cases over the years and I’ve often had to badger the criminal solicitor into obtaining a postponement of the criminal proceedings so we can go first.

3. I am a cynic. The DWP knows that despite the higher standard of proof in the criminal courts, the fact that those same courts (and likely the defendant’s solicitor) do not have expertese in benefit law means it has a better chance of a result if it can get to a full hearing at magistrates or crown court before the parallel civil case/appeal has been heard - and it is for this reason that it will often try to get the overpayment appeal postponed until after the criminal trial.

3. You have already got the ideal situation in this case - you get to go first. A postponement risks that.

Client should be fully aware of what she is risking by asking for a postponement.

Just as an update on this, despite us providing evidence that the client booked her holiday in February 2016 and the hearing being listed long after that, they are still not prepared to postpone. HMCTS state that she is going on holiday within a distance that allows her to travel back to her hearing. There is a plea and case management hearing on 5th August and HMCTS made quite a sarcastic comment saying tat she clearly forgot to tell her solicitor that she was not available for this hearing either!!

Sounds like HMCTS have her best interests at heart then, even if she doesn’t realise this herself.

You did read the advice above about how it is in her best interests for the civil (tribunal) case to proceed first and that any postponement might risk this?

Yea, we have discussed it on more than 1 occasion and she seems to understand the importance of her tribunal, although it did take quite a bit of time to get the message across. My concern now is that she fails to attend. There is no way at all that the case can be decided solely on papers and she needs to be there to give her side to the tribunal,. I am seeing her this week for a last discussion on her case so lets just keep everything crossed.